Feds Duck Hard Questions with Dismissal of Navajo Lawsuit

A Navajo lawsuit to force the federal government to honor tribal claims to the Colorado River was dismissed on procedural grounds in federal court earlier this month.

On the one hand, the lawsuit’s fate doesn’t have a direct bearing on Navajos’ rights to water from Colorado River. On the other, it casts doubt on whether those rights will ever actually be quantified.

Many tribes possess claims to Western rivers that are senior to those asserted by the states and other water users. That’s because of a 1908 court case, Winters v. United States, which ties tribal water claims to the establishment of reservations. But the vague historic claims – enough water to turn reservations into permanent homelands – must be quantified in the courts, in a process called adjudication, to become usable rights to water. As of 2013, 13 Arizona tribes have settled all or part of their claims to nearby watersheds, another four are in ongoing processes to do so, and seven have claims that have not been brought up in adjudications at all.

Scott McElroy, a Boulder, Colorado attorney who has helped represent the Navajo Nation in the suit, said that on other Arizona watersheds, including the Little Colorado and Gila rivers, the state of Arizona has initiated adjudications, so the state would know how much water it could use once tribal rights were settled. In those cases, the state has waived its sovereign immunity in order to go to court. But on the Colorado River, the Secretary of the Interior has authorized no less than five inter-state water deals spanning more than a decade. At most, they give a nod to unadjudicated tribal claims to the water. Meanwhile, Arizona and neighboring states are sharing and using the water as if tribal claims don’t exist. And in the recent Navajo suit, Arizona revealed its position that its sovereign immunity would block any lawsuit to quantify tribal claims.

“That doesn’t mean we agree that it would bar a tribal suit,” McElroy said. “But Navajo faces an uphill battle, maybe not an impossible battle, to get its water rights in court itself because of the immunity of the state of Arizona primarily. The fact that the United States keeps avoiding its responsibility has an effect on Navajo’s rights in that respect.”

The lawsuit, Navajo Nation v. U.S. Department of the Interior, challenged five water-sharing agreements between the Lower Basin states of Nevada, Arizona and California – including 2001 surplus guidelines and 2008 shortage guidelines. All follow from a 1922 Colorado River Compact that divides the Colorado’s water between states in its upper and lower basins. The Navajo Nation sued for breach of trust and violations of the National Environmental Policy Act, among other claims. But the court never analyzed the claims. On July 23, G. Murray Snow, United States District Court judge for the District of Arizona, dismissed all of the claims based on the sovereign immunity of the United States and other procedural grounds.

The Navajo Nation argued in court documents that it “has always contended that its Reservation requires water from the mainstream of the Colorado River if it is to be the permanent home for the members of the Navajo Nation,” which is the reason water claims were tied to reservations in the first place. As it stands now, many Navajo people are hauling drinking water over considerable distances, and the Nation says that current water supplies, without Colorado River water, will be inadequate to sustain the future growth of the tribe.

The Hopi Tribe, on a reservation surrounded by the Navajo Nation, sided against the Navajos in this case, and joined the United States in asking the court to dismiss it. The Hopi Tribe’s argument was also a procedural one: “The Hopi Tribe cannot be joined as a defendant in this suit under principles of sovereign immunity,” wrote attorneys Martin Clare, of Phoenix, and Joe Mentor of Seattle, in the Hopi motion to dismiss. “And the tribe’s absence will impair its ability to protect its interests.”

Mentor explained: “This lawsuit, to proceed, would have required an adjudication of the Navajo claims. We are a competing claimant for water from the mainstem Colorado. Therefore, we think we would be a necessary party for purposes of adjudicating claims.”

The Hopi Tribe, he said, doesn’t believe adjudication on the Colorado will be ripe until an ongoing adjudication is finished on one of its major tributaries, the Little Colorado. To the extent that Hopi doesn’t get enough water from the Little Colorado, he said, “we’re reserving the right to claim water from the mainstem.”

He said like the Navajo, the Hopi Tribe also asserts claims to all the water it needs for homeland purposes.

“Hopi claims are senior to those of all the world,” he added. “They were in that region before anyone else. Old Oraibi [a Hopi village] is the oldest, longest continuously inhabited place in the western Hemisphere.”

As for what happens next on the Colorado, the court never reached the substance of the Navajo Nation’s claims. Therefore, McElroy said, the Navajo Nation would be on firm footing to appeal the case, should it choose to do so.

For now, he said, the dismissal “allows the federal government to continue to avoid the difficult questions: one, does the Navajo Nation need water from the Colorado, and two, does the Navajo Nation have reserved water rights. There’s no question that part of the purpose of this case was to get the United States to face up to those questions.”